People v Cantor

[*1] People v Cantor 2006 NY Slip Op 52326(U) [13 Misc 3d 1243(A)] Decided on December 4, 2006 Criminal Court Of The City Of New York, New York County Weinberg, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on December 4, 2006
Criminal Court of the City of New York, New York County

The People of the State of New York

against

Jonathan Cantor, Defendant.



2006SC012480

Richard M. Weinberg, J.

Defendant is charged with Disorderly Premises in violation of Alcoholic Beverage Control Law §106(6). He moves for an order dismissing the information as facially insufficient under Criminal Procedure Law §100.40.

Criminal Procedure Law §100.40 and, by reference, Criminal Procedure Law §100.15 require that factual allegations of an evidentiary character in the information provide reasonable cause to believe the defendant committed the offenses charged and that non-hearsay factual allegations establish a prima facie case that the defendant is guilty. People v. Allen, 92 NY2d 378 (1998). While an information must state the crime with which the defendant is charged and the particular facts constituting that crime (People v Hall, 48 NY2d 927 [1979]), the prima facie requirement is not the same as the burden of proof required at trial. People v Henderson, 92 NY2d 677 (1999). So long as the factual allegations of an information give an accused notice sufficient to prepare a defense and are adequately detailed to prevent a defendant from being tried twice for the same offense, they should be given a fair and not overly restrictive or technical reading. People v. Casey, 95 NY2d 354 (2000).

Alcoholic Beverage Control Law §106(6) is violated when a person licensed to sell alcoholic beverages suffers or permits the licensed premises to become disorderly.

To sustain a charge of Disorderly Premises, it must be shown that the licensee or manager knew or should have known of the condition and tolerated its existence. A brief, unexpected incident is not enough to establish a violation unless management was instrumental in creating the incident. A licensee is not responsible for every act of his non-managerial employees nor is he responsible for every act of his customers. Matter of Mal Restaurant Inc. v New York State Liquor Authority, 74 AD2d 750 (1st Dept 1980), lv denied 54 NY2d 602 (1981); Matter of Playboy Club of NY v State Liquor Authority of State of New York, 23 NY2d 544 (1969); Awrich Restaurant v New York State Liquor Authority, 60 NY2d 645 (1983). Unexpected [*2]events of brief duration which could not have been prevented through reasonable supervision or could not have been reasonably anticipated can not serve as the basis for a disorderly premises charge. See People v Serro, 179 Misc 2d 54 (1998), citing Matter of Moonwalkers Rest. Corp. v New York State Liquor Authority, 250 AD2d 428 (1st Dept 1998).

The information accuses the defendant of violating this statute and provides him with notice that he must defend against a charge that, at a specified time, date and place, he "acting as club manager did allow patrons to smoke marijuana inside of club resulting in 3 arrests".

These factual allegations, although minimal, are sufficiently evidentiary in character to satisfy the relevant CPL requirements and the allegations tend to support the charge. The information alleges that the premises were disorderly in that illegal activity was taking place and that the defendant-manager allowed this to occur. Issues of whether the defendant actually knew or should have known and what actions, if any, he took in response, are matters of proof at trial. See People v Serro, 179 Misc 2d 54 (Crim Ct, NY Co 1998) . The allegations establish reasonable cause to believe and a prima facie case that the defendant committed the charged crime. "At the pleading stage, nothing more is required." People v Allen, supra, at 385.

The defendant's motion to dismiss for facial insufficiency is denied.

This constitutes the decision and order of the Court.

Dated: December 4, 2006___________________________

New York, New YorkJudge of the Criminal Court